As New Lawyer, Senator Defended Big Tobacco

Published: March 27, 2009

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During her most recent congressional race, Ms. Gillibrand, who is a former smoker, accepted $18,200 in campaign donations from tobacco companies and their executives -- putting her among the top dozen House Democrats for such contributions. Many Congressional Democrats do not accept tobacco money.

Mr. Canter said the senator should be assessed based on her record in Congress, where she has voted against the industry's interests on several occasions, including supporting cigarette tax increases to help expand children's health care.

And Todd Henderson, an assistant professor at the University of Chicago Law School, argued that it would be unfair to assess lawyers by whom they represent. ''Nobody would want to live in a world in which lawyers are judged by the clients they take,'' he said.

Limiting Evidence

A scion of a prominent Albany political clan, Ms Gillibrand graduated from law school at the University of California, Los Angeles, in 1991 and took a job at Davis Polk, a firm that had worked closely with the tobacco industry for decades.

Ms. Gillibrand was working at the firm during critical years for the tobacco industry, as the public tide was turning against smoking, and leading Democrats in the Clinton administration and Congress pushed for a more aggressive stance toward cigarette companies. At the same time, plaintiffs' lawyers were beginning to chip away at the industry's time-tested legal strategies.

In 1994, executives of the nation's largest tobacco companies, including Philip Morris, prompted anger and disbelief when they swore before Congress that they did not believe smoking was addictive or that there was a proven link between smoking and cancer.

That appearance intensified criticism of the industry and scrutiny by federal prosecutors and ultimately led to a broad criminal investigation by the Justice Department into whether the executives had perjured themselves.

The government sought reams of internal company records to determine whether the tobacco executives had lied. There is no indication that Ms. Gillibrand ever discussed the case with William Campbell, then the Philip Morris president and chief executive, who was among the subjects of the perjury inquiry. But Philip Morris internal records show that the company's top lawyers entrusted her with several essential elements of the case.

As a member of the Eastern District of New York Subpoena Working Group, Ms. Gillibrand helped limit what evidence the government obtained. She also monitored the testimony of witnesses who appeared before the grand jury and wrote strategy memos to the Philip Morris general counsel, Ken Handal, analyzing the witnesses' statements and their impact on the investigation.

Her travels to Germany took her to the Institut Fur Biologische Forschung, or Institute for Biological Research, a laboratory that Philip Morris had set up in Cologne, which has been criticized by antitobacco activists and cancer doctors. The establishment of the lab overseas, where topics of study included the role of tobacco in cancerous tumors, had allowed the company to keep conducting research there, beyond the reach of the United States government, news media and plaintiffs' lawyers.

Ms. Gillibrand learned so much about the laboratory's inner workings during the criminal investigation that by 1997, records show, she provided Philip Morris lawyers with a list of questions about the German lab to help them prepare company witnesses being called to testify in civil cases in Minnesota and elsewhere across the country.

At the laboratory, she interviewed Dr. Max Reininghaus, the general manager who oversaw the experiments, and reviewed lab personnel records that had been sought by federal investigators.

In 1998, when the case reached a turning point as one tobacco company, the Liggett Group, considered cooperating with prosecutors, Ms. Gillibrand was one of a handful of lawyers for Philip Morris privy to the unsuccessful efforts to dissuade Liggett from breaking ranks with the other cigarette makers.

She was also among the small group of Philip Morris lawyers involved in the effort to contain the damage the defection could do to other companies in the tobacco industry, pushing to prevent Philip Morris from disclosing any documents that would violate the confidentiality of the other co-defendants.

''She clearly was more than a lowly associate lawyer on the case,'' said Anne Landman, a tobacco document researcher who has testified against the industry and edits Tobaccowiki.org, a Web site that provides analysis of tobacco documents. ''Philip Morris showed deep trust in her and brought her in on sensitive legal matters that were of great importance to the company.''

In the face of the vigorous counteroffensive from the industry, the Justice Department abandoned its criminal inquiry in 1999 and decided to bring a racketeering case in civil court, claiming that the cigarette companies conspired for half a century to mislead the public about the dangers of smoking.